56 P. 648 | Or. | 1899
after making the foregoing statement of facts, delivered the opinion.
The only question presented by the appeal is whether the acquittal of defendant upon the charge or indictment for malicious destruction of personal property is a bar to the prosecution on the second trial, under the indictment for illegal disinterment. The injury to the coffin was accomplished by the defendant while in the act and during the course of the disinterment and removal of the body of the late W. S. Ladd, for which offense the defendant was indicted and convicted. While the judgment in the latter case was in force the defendant was put on his trial for the injury to the coffin. To the indictment therein preferred he interposed the plea of former conviction of the same offense, referring to the judgment then standing against him for the illegal disinterment, and in this he was successful before the jury. Now, the judgment in the case at bar .having been reversed on the'former appeal, the defendant, upon Ms second trial, by leave of the court, interposed a plea of former acquittal because of his acquittal upon the charge of malicious injury to personal property, and it is urged that the court erred in not giving effect to the plea. The case presents a novelty in logic, and, at first blush, would seem to present the nonlogical fallacy of petitio principii. In the first instance, it is said the
There is not only a seeming but irreconcilable conflict in the authorities touching what elements or ingredients, and the nature thereof, are requisite to constitute what is termed in book lore “the same offense,” and we will not at this time attempt the bootless task of reconciling them. Mr. Chief Justice Bean, in State v. Howe, 27 Or. 138 (44 Pac. 672), says: “Many tests have been announced by which the question as to when the offense is the same can be determined, but their application must necessarily depend largely upon the facts of each particular case:” Coming to the present controversy, Biddell, J., in State v. Elder, 65 Ind. 282, laid down a rule which has impressed us as sound, and from which one
The two offenses with which we are at present dealing are quite distinct, one from the other. “If any person shall willfully and wrongfully dig up, disinter, remove, or convey away any human body, or the remains thereof,” the act constitutes an illegal disinterment (Hill’s Ann. Laws Or. § 1875); while if he “ shall maliciously or wantonly, in any manner or by any means, not otherwise particularly specified in this chapter, destroy or injure any personal property of another,” he commits an entirely different crime : Hill’s Ann. Laws Or. § 1779. Now, it is perfectly patent, as was said by one of the witnesses, that it was possible for the defendant to have disintered and stolen the body from the grave with the casket without breaking or mutilating it in the least, and the casket may have been injured without disinterring
In support of defendant’s contention, much reliance appears to have been placed upon the following language of Mr. Chief Justice Bean in State v. Howe, 27 Or. 138 (44 Pac. 672): “The question is not so much whether the defendant has been tried for the same act, or whether the facts alleged in the second indictment would have warranted a conviction on the first, as it is whether he has been put in jeopardy for the same offense, or some part or constituent element thereof.” In support of the position, a quotation is made from the note of Roberts v. State, 58 Am. Dec. 537, as follows: “The offenses charged in the two indictments must be substantially the same, or, as we shall see, they must be of the same nature or species, so that the proof of the one involves the proof of the other, or such that one is a part or constituent element of the other.” The term “constituent element,” when applied to crimes, signifies an essential or necessary ingredient; and when two offenses are so related as to have an essential or necessary ingredient common to both, and the proof of one involves the establishment of the other, then a conviction or acquittal of either is a bar to a prosecution for the other; so that the language upon which special stress is laid has relation, and can only apply, where there are different degrees of the same crime, such as murder in the first and second degree and manslaughter, or where, from the very na
The intended meaning of the language employed becomes manifest if further recourse is had to the same monographic note of Roberts v. State, 58 Am. Dec. 537. The author says (page 545) : “Every offense of the same generic class,— that is, of the same nature,— though varying in the degree of the offense growing out of the same transaction, must each contain the same common, essential elements ; and again, in establishing the less offense, all the circumstances of the transaction will be proved, and the whole offense committed will be placed before the jury. The acquittal will, therefore, be, in effect, an acquittal of criminal liability in the Avhole transaction; while, if the conviction is for a less offense than that really committed, yet the state is certainly the delinquent party.” The term, “constituent element,” as a necessary ingredient, is therefore applied only to crimes consisting of two or more degrees, or where, by the necessary proof of one offense, another
Affirmed.